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NEW HAVEN 10RJ1K( JOOKNAL AND COURIER, FRI1AY MAY a 4 1907
REPORT OF COMMISSION ElPLOYERniABILIIY AC! An Important Question That Requires Extended Study. INSTRUCTIVE REVIEW. A New Commission Advised To Report at the Next Session. The special commission, consisting of Edward M. Day of this city, E. Allen Moore of New Britain and Charles J. Donahue of Derby made their report yesterday on the subject of Employers' Liabllty legislation. After reciting the act under which the commission was appointed the report In full gays: On March" 4, 1907, the committee pro Tided for in your resolution received its appointment from His Excellency, Governor Rollin S. Woodruff, and pro ceeded at once to undertake the Inves tigation of the question of the liabil ity of employers for accidents to em ployes. On March 28, 1907, your committee reported to you that it would be una ble to make a final report on or before April 2, 1907, and recommended that the time limited for its investigation and recommendation of the subject matter of your resolution be extended to date not earlier than May 20, 1907. By house joint resolution 390, ap proved May, 1907, it was resolved by your general assembly that the time for the final report of your commit tee be extended to May 20, 1907. Immediately upon organizing as a committee, after notice was given to all interested in the question of leg islation affecting the liability of em ployers to employees, public hearings were held, and your committee has en deavored in every way to so accommo date itself to the convenience of those desiring to be heard as to get the full est possible discussion of this ques tion. Bills Considered. No bills for proposed legislation were presented to your committee, but your committee assigned for hearings three bills introduced to your assembly Which were referred to the Judiciary committee.. Of these three bills one provided In substance for the abroga tion of, what is known as the Fellow Servant Rule, and the ather two bills provided In substance for acts known as, Employers' Liability Acts. These three bills served as the basis for a general discussion before your com mittee of the Important question of legislation affecting the liabllty of em ployers to employes. Not only Its legal phases were . considered before your committee, but the question was treat ed to some extent from its economla and .soalsl 'aspects; and it may be said ""aV once that those advocating some legislation proposed first, either the abrogation of what is known as the Fellow Servant Rule; or, second, the enactment of a law similar to what is generally known as an - Employers' Liability Act; or, third, legislation carrying out In principle what are known In other countries as Work men's Compensation Acts. Those in favof of . these proposed changes in the law of our state were fully heard by your committee, while objections to each of them were pointed out and dis cussed by those who thought it was hardly possible to enact a law affect ing the relations of employer to em ploye Which would be fairer and more just to all concerned than the law of Connecticut as it now stands. The members of your committee not only listened to the discussion of these questions at the public hearings, but have investigated the subject them selves so far as the limited- amount of time would allow them, endeavoring in every, way to so inform themselves as to be able to act intelligently and wisely in regard to this important matter. The Law In Connecticut. The law affecting the relation of master to servant of employer to em ployehas been a growth, developing and changing as our' courts have ap plied the principles of the common law to the ever changing conditions of so ciety. In Connecticut the law pro vides that the employer assumes cer tain duties towards the employe and also that Jhe employe assume certain risks and hazards incident to the busl nes of his employer. An employer assumes the duty towards the em ploye' of exercising reasonable care and diligence to provide the employe with a reasonably safe place in which to work, with reasonably safe machin ery, tools and Implements to work with; with reasonably safe materials to work upon, and with suitable and competent felow servants to work with him; and in case of a dangerous or complicated business, to make such reasonable rules for its conduct as may be proper to protect the servants employed therein. The law does not require of the em ployer that which Is Impossible; it only requisites that he exercise the care of an ordinarily prudent person in the conduct and operation of his business. Oftentimes he must perform these dut ies through an agent or an employe, and in Connecticut the employer who does an act which It is his duty to do, through an agent or another employe, must see that that agent or employe performs the duty imposed upon the master and performs it with due care. In 1901 the general assembly passed a statute declaratory of the principles already applied by our courts to the re. lations existing between employers and employes, and which reads as fol lows: "It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place In which to work, reasonably safe ap pliances and instrumentalities for his work, and fit and competent persons as his co-laborers; to exercise reason able care in the appointment or de slgnation of a vice-principal, and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the mas ter shall be the default of the mas ter." These principles prescribe the duty of the employer to the employe. In en tering into a contract of service with the employer, the employe on his part impliedly assumes certain risks and obligations. As a matter of law it is held that when an employe suffers an injury to which his own negligence materially contributed, there can be no recovery of damages from the em pic yer; that he assumes all the risks, and hazards Incident to or attendant upon the exercise of the particular em ployment, or the performance of the particular work in which he is engaged as the same is conducted by the em ployer; and that as a part of his as sumption of risk he impliedly agrees that the employer shall not be liable to him for an injury which he may sustain, resulting from the negligence of other servants in the same employ ment. These principles state in sub stance the assumption of risks which the employe undertakes to bear In en tering the employment of his employ er. Fault is not found with the rules of law which provide that the duty of the master shall consist in using reasonable care to provide for servants a reasonably safe place in which : to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers; nor with the rules of law which provide that the employe must bear the results of his own contributory negligence, and assumes the risks inci dent to the conduct and operation of the business in which he is engaged; but it is claimed that the rule of Fel low Servant, whatever may have been the reason for its adoption, Is not suit ed to the condition of society as It ex ists to-day, and that the State of Con necticut by legislative enactment should abolish its operation as a de fense in suits by employes against em ployers. Fellow Servant Rule. I The rule of Fellow Servant or Co- employe provides that if the master or employe uses ordinary care iii the selectidn of competent servants or em- i- ,. ti, a,,.v, v.,,-1- ness, he shall not be responsible to one servant or employe for injuries which result to him through the negligence of another servant or employe in the same employment. It is a doctrine worked out by the courts not by the legislature, and was enunciated by the courts both of England and of Amer ica at about the same time. In the case of Priestly vs. Fowler, 3 Mees. & Welsh., decided in 1837, Judge Ablngton , first stated the rule and declared that it is not just to make one man responsible for incom petent acts over which he has no per sonal control, and that what risk, if any, was Involved in the co-laboring of a number of men must be assumed by those most intimately acquainted with the conditions and most liable to be affected . ' ,;"";., The rule In, America was first enun ciated by the courts of Couth Carolina In the case of Murray vs. So. Carolina Railroad company, 1 McMullan 385, decided in 1841. Since that time the rule has been applted as a defense in actions by employes against employers generally throughout this country by the courts both of the different states and of the United States. Grounds For Its Adoption. Various grounds have been assigned as reasons for, its adoption, one being that the duty of the ' employer was performed when he had used reason able care to select competent servants for his work; another being that In the contract of employment it is not provided that the . employer should compensate his employe for injuries resulting from such acts of negligence; but the one most generally relied upon being that the employe Impliedly agrees to assume the risk of injury re sulting from the negligence of a co employe in undertaking the work, of his employer. The reasons for Its adoption are perhaps stated best in the famous case of Farwell vs. Boston and Worcester Railroad company, i Met- calf 49 decided in 1842, in which Chief Justice Shaw delivered the opinion and in enunciating the rule of Fellow Servant for the first time In Massa chusetts said: "The general rule, resulting from considerations as well of justice as of policy, is, that 'he who engages in the employment of another for the per formance qf specified duties and ser vices, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presump tion, the compensation is adjusted ac cordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectu ally guard, as the master We are of the opinion that these considera tions apply strongly to the case in question. Where several persons are employed in the conduct of one com mon enterprise or undertaking,, and the safety of each depends much on the care and skill with which each oth er shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any mis conduct, incapacity or neglect of duty, and leave the service, if the common employer will not take such precau tions, and employ such agents . as the safety of the whole party may re quire. By these means, the safety of each will be much more effectually se cured, than could be done by a resort to the common employer for indemni ty in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustain ing an injury in the course of his own employment, in' which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer." Judge MeC'iirdy's Opinion. In Connecticut the rule was adopted In 1867 in the case of Burke vs. Nor wick and Worcester Railroad com pany, 34 Conn., 474, not without some hesitation. Judge McCurdy writing the opinion, and since that time it has been applied by our courts, eliciting, however, from time to time, occasional remarks by some judges as to Its In justice. The strict application of the rule has been somewhat modified by what is sometimes "called the doctrine of Vice Princijial and the courts of the differ ent states have been at wide variance in particular cases as to who are vice principals and who are fellow ser vants. In Connecticut under the de cisions of our courts it is held that whenever the employer delegates to any officer, servant, agent, or employe the performance of any of the positive duties devolving upon him, then such officer, servant, agent, or employe stands in the place of the employer, and the employer is liable for his acts and his negligence to the same extent as though he himself had performed the acts and was guilty of negligence. Criticisms of the Rule. The rule as thus modified by the de cisions of our courts has more excep tions and allows more recoveries than in many jurisdictions where It has been differently interpreted. Neces sarily a rule of law which affects to such a large extent the relations Of employers and employes must be of frequent application in the courts and must be an important element In in dustrial undertakings. In recent years, however, as Industries have developed and the position of employes has changed to a certain extent, the sound ness of the rule has been questioned and many criticisms have been made upon its universal application. It is said that while the rule was applica ble to the state of society which ex isted at th$ time of Its adoption, it is not suited to the complexity of present day industries; that the argument that the employe impliedly agrees to as sume the risk and the negligence of his co-employes is not sound; that public policy is not best served by its continuance in that It doe? not make the employe more cautious both for himself and the public; and that It is not such an element In industrial un- deHakmES that its abrogation would I?'"" - 1 ,t,,e 'veal..le,u the Athpr hanr? tr In nlnimprt that if ;th(J rule WM 8QUnfl m principle whell ! adopted, the complexity of present day i industrial conditions floes not make It .any less sound; that the operation of the rule makes employes more careful In their work; that to abrogate it Into would make the employer liable for every injury resulting to an employe through the carelessnes of another em ploye, which very condition would lead to collusion among employes and would result in frauds being practic ed upon .the employer; that if it did not exist an unreasonable burden would bo added to the operation of Industries; and that In reason when an employer has used ordinary care to select competent servants to operate his business he should not be respon sible to one servant for the acts of an other servant, over which he has ho control. By illustration It is said that It is unreasonable that an employe n a car at the rear end 1 of a railroad train shou!d suffer for the negligence of the engineer, whom he does not see and against whose carelessness he has no means of protecting himself. And, jon the other hand, by illustration it is I said to be unreasonable that a farmer j should be liable In damages to one of jhis laborers.for Injuries resulting from the negligence oi anotner wnne tney are working in the fields together, or that a householder should be account able' to one domestic for injuries re sulting from the carelessness of an other while they work together in the same house. In judicial decisions even when applying the rule one frequent ly meets with some severe criticisms upon its universal application. In - a note appended to the case of Nolan vs. New York, New Haverr & Hartford Railroad company, 70 Conn, page 194, the judge (Hamersley) who delivered the opinion, in discussing the applica tion of this rule said that: "Possibly , cases may arise where the legitimate exercise of the duty of the court In applying" established princi ples to novel conditions, may involve some limitations of its apparent reach. But the evil Is too deep seated to be remedied by judicial action; it needs radical treatment through wise legis lation." 4- ' In the expansion and develop ment of industries from the small undertaking in whleh the master and his servants worked together to the large establishments with va rious and separate departments, it Is hardly to be denied that there arise some apparently very hard and unjust cases In the universal application of this rule of law, however sound and necessary it may be In other cases. It is, however, such a vital element In the condition of society that to abrogate H in to to without limiting In any manner the amounts which an employe might recover from the employer for injuries occasioned by the negligence of a co en.ploye would be radical legislation of doubtful advantage. Such legislation has not been enacted in any state ex cept in Colorado. On account of these exceptional cases in which it has seemed unjust that this rule of law should apply, especially In England and in the states of this coun try where the rule has been interpret ed rather differently than in Connecti cut, efforts have been made to, enact legislation relieving from the operation of the rule employes In certain employ ments, mainly railroads, and to modify the operation of the rule as to certain specific employes in other lines of em ployment. It was not proposed to ab rogate the rule entirely as a principle of general application, but to so mld ify it as to make Its operation more just. . Employers' Liability Acts. The initial legislation of the most im portance along this line took place in England in 1880 when parliament en acted what was called the Employers' Liability Act. It is to be remembered in connection with this legislation that In England the docirlne that a master may be held liable to an employe for an injury resulting through the neg ligence of another employe doing a duty which devolved upon the master, sometimes known as the doctrine of vice principal, was after much pressure finally rejected by the house of lords, at least as to acts done in conducting a business as contrasted with those done in furnishing the instrumentalities for the uses of employwL The main fea covery may be hail wheTpersonal In jury is caused to a workman: "I. By reason of any defect In the condition of the ways, works, machin ery or plant connected with or used in the business of the employer," which section is restricted by a later section providing that the workingman shall not be entitled to recover "unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer or some person in the service of the employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant were In proper condition." 2. By reason of the negligence of any person in the service of the employer who has any superintendence entrust ed to him whilst in the exercise of such superintendence. 3. By reason of the negligence of any person In the service of the employer to whose orders or directions the work man at the time of the injury was bound to conform, and did conform where such injury resulted from his having so conformed. 4. By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that be half;" which section is controlled to a certain extent by a later one, which provides that "unless the injury results from some Impropriety or defect in the rules, .by-laws or instructions therein mentioned" there shall be no recovery. 5. -By reason of the negligence of any person in the service of the employer who has the charge of control of any signal, points, locomotive engine, or train upon a railway." The change this accomplished in the law of England by this legislation af-. fected mainly employes on railroads and enlarged to some extent the num ber of recoverable cases against other employers of .labor, principally by the provisions as to acts of superintend ents. In This Country. In this country Massachusetts, Ala bama, indiaha and New York have en acted Employers' Liability Acts prac tically similar to the English employ ers' Liability Act of 1880, while Utah has passed an! act comtaining most of the provisions of the English act but not all. Colorado adopted an act sim ilar to the English act, and' later also abrogated entirely the rule of Fellow Servant. The states of Arkansas, Florida, Georgia, Iowa, Kansas, Mon tana, North Carolina, North Dakota, Wisconsin and Texas have enacted acts abrogating the rule of Fellow Servant entirely as to all co-employes on rail roads, while Minnesota, Mississippi, Missouri, Ohio, SoutH Carolina and Vir ginia have abrogated it as to certain co-employes on railroads, mainly as to those occupying positions of superin tendence. The Federal Lnw. By an act of congress apprdved June 11, 1906, it was provided: "That every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of " the United States, or between the' several states, or between any territory ana another, or between any territory or territories and any state or states, or the District of Columbia, or with for eign nations, or between the District of Columbia andftny state or s;ales or foreign nations; ahall be liable to any of Its employes, or, In case of his death, to his personal representative' for the benefit of his widow and children, if any, if none, then for his pareuvs, if none, then for his next of kin depend ent upon him, for all damages which, may result from the negligence of any of its officers, agents, or employes, or by reason of any defect or insufficiency due to its negligence in Its,, cars, en gines, .appliances, machinery, track, roadbed, ways, or works. On account of the peculiar situation In Connecticut, there being here prac tically only two railroad systems, those being engaged in commerce between the different states, it is probable that, assuming this act of congress to be constitutional, the rule of fellow ser vant would no longer be a defense hero in actions brought by employes of these railroads for injuries resulting through the negligence of co-employes working thereon. Taking into consideration, therefore, this act of congress, and be ing mindful of the construction of the rule of fellow servant in Connecticut, it would not, appear that the law here now in regard to the liability of em ployers to employes Is very much dif ferent, except as to certain acts of su perintendents, from the law of the states of this country which have pass ed acts similar to the English Em ployers' Liability Act of 1880, and prac tically not at all different, except as to some modifications in' in terpretation, from the law in those states of this country which have ab rogated the rule of Fellow Servant only so far as employes on railroads are concerned. Evidence on the Subject. It has not been possible for your HAVE YOU SEEN IT? THE MONEY BACK MOWER? The best money can buy but the price is not large. All sizes and patterns from $2.75 to $6.38. Stop in and see our display of Vases, both stone and iron, for lawn or cemetary-lot decoration. Steel Lawn Swings, Iron Cha'rs, etc. THE FRANK S. PLATT CO., Seeds, Plants and Bulbs, NEW HAVEN. committee to gather extensive evidence as to the practical effect of thess mod i.lcatios of the rule of Fellow Servant In different jurisdictions, but so far as it goes it seems to point toward a not very satisfactory result. On account of the general expectation that these acts brought within their scope a larger number of cases than they actually did, the inevitable tendency has been to in crease litigation and cause the .bring ing of many cases which were without merit; all of which has fostered and fed the baneful practice of litigation instigated by lawyers who take dam age cases on a contingent basis, the re sult of such litigation Involving a large amount of expense to employers in de fending such suits, and even in suc cessful cases the employes . not being the ones most beneficially affected. Speaking of the English Employers' jiaDiuty Act, Lord Justice Fry re marked: "That statute is one which has creat ed considerable difficulty in different cases, and I must observe that it ap pears to me to be a piece of legislation which doe3 not carry Into effect any one simple idea but is, on the contrary,, a compromise, so to speak, between two conflicting kinds of legislation or se ries of thought on this subject of the liability of the master to the employe. Wolff in his work on Employers' Lia bility, in speaking of this act, says: "It has only very partially, more b.y apprehensions aroused, which may sub side, than by direct efforts likely to en dure, reduced the number of accidents, and only very partially, irregularly and insufficiently provided compensation for injured workmen." The Commonwealth of Massachusetts under a resolve of the general (assem bly, approved June 5, 1903, appointed a committee of five, of which the Hon. Carroll D. Wright was chairman, to in vestigate this whole subject, and in a very exhaustive report and ope which is entitled to considerable weight, after considering the relations between em ployers and employes both under the common law and the Employers' Lia bility Act, enacted in 1902, in that state this committee said: "It may truthful ly be asserted that neither employers nor employes are satisfied with the present law pertaining to personal in juries to employes." In a report of the Bureaeu of Labor and Industrial Statistics of the state of Wisconsin, in which careful study was given to this question of employers' li ability to employes, tt is said: "The general dissatisfaction caused by a sys tem of employers' liability acts in its practical operation is not to be denied. The inevitable result of such a system is to arouse distinct animosities be tween the two essential factors of in dustrial production, which condition is much to be avoided. "It Is doubtful whether a practical solution of the difficulty lies in the amending in any particular the exist ing Employers' Liability laws." Worklngriuen's Compensation Acts. : Iii the United States, as Is thus seen, this question of employers' liability for. injuries to employes in the course of their employment has been treated al most entirely from a purely legal standpoint by increasing the grounds up6n which an employe might sue his employer, based on the theory of a wrong committed. In England and the European states the , question, of re cent years, has been studied and treat ed, more as an economic and social problem than as a legal one. It Is held that the treatment of the subject ' by considering the employers liable as for a wrong does not produce satisfactory results. It is shown that besides the accidents which occur in the operation of industries for which damages may be recovered under laws holding the employer liable on the ground of negli gence, that there are an equal number of accidents for which no recovery can be had against the employer, because they were unavoidable and incidental to the operation of the industry; and that it is hard and unjust that the em ployes and their families should Sear the result of these injuries absolutely alqne It Is also argued , that under the purely legal theory it is often dif ficult for an employe to prove negli gence even when there Is negligence, and, so he falls to secure damages which justly belong to him. It is said that employers at present insure their liability' in casualty companies which come in at once upon the happening of an injury and with a large force of trained . men at their disposal oppose recovery by an employe, often left des titute of the resources to carry on the necessary litigation. It is claimed that under a system which makes negli gence on the part of the employer the basis of recovery and does not limit the damages which may be recovered, that a certain class of lawyers make It business of securing negligence cases on a, contingent basis, trying them all and hoping to recover in a sufficient number to reap a handsome reward even if they fail in the majority; that under this system the relation of the employer to his employes becomes strained and embarrassing, and that I ' ' " , v 4 " ittK" KJ Iff Second Day of Our Notion Sale For Friday we of fe r every s or t and Kind of the most wanted notions at extraordinary savings. 120C-yd Spool Machine Cot ton for 5' 500-yd Spool of Easting Cot ton for 4 ' Medium and Large Size Dress maker Shears, worth 25, a Light; Weight Summer Dress Shields, worth 15c' for -5'. 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"' "The conviction appears to be gain ing, ground that. the only .satisfactory solution of the question Is to be found In abandoning altogether the ldea'.et employers' liability and In treating problem as being, esesentially that of putting on a sound economic basis a portion of the necessary taxation of the state. For as the care of the injured workman and the support .of those whom were he injured, he would' haVe 1 he W The New Haven Gas Light Go., Salesroom, 93 Crown Street. . Open Saturday Evenings. .. THE BAY STATE FKAMLIN ''is Just The Thing , . for Country and i - ir a in tain inii Tw if j p. : . : ft " V 'T s " il k t ' x : f . it' 'J , . -. , Send for Prices and Circulars. T. G. WHITEHEAD, 360 STATE STREET. 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If it is possible to accept; as generally true the economic law that a tax levied on the producer of manufac tured goods is ultimately borne, not by him, but by the consumer, the Ideally Just distribution of liability can be ob tained by an Insurance system under which premiums proportional to the risk of injury Involved are laid upon the manufacturers, and by them 'recovered from their customers." Consequently, In view of considera tions such as those expressed by Wal ter Gorst Clay, the writer of this arti cle, just quoted, England and the states (Continuod on Twelfth Page.) oman ITH a Gas Range and an Instantaneous Gas Water Heater, whose home is lighted by Gas, is not ft slave to work. She saves money by it Seashore Vacation Cottages Is made of Russia Iron; is light, so that it can be easily mov ed from room to room. It is. hand somely trimmed with, brass and black en-i amel, making it or-j namental in appear ance. 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